Obligations regarding activities involving an alien or invasive species

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The Alien and Invasive Species Regulations (the Regulations) were published on 1 August 2014 (GN R598 in GG 37885 of 1 August 2014, with effect from 1 October 2014) and are aimed at controlling alien and invasive species in South Africa. The minister of environmental affairs also published lists of alien and invasive species and categorised the listed invasive species in four different categories namely category 1a, 1b, 2 and 3.

Listed invasive species

The Regulations place a duty on the landowner or person in control of listed invasive species, to respond in various ways, depending on which category of species is applicable. Firstly, the National Environmental Management: Biodiversity Act, 2004 (Act 10 of 2004) or the NEM:BA, requires a landowner on whose land listed invasive species occurs, to notify any relevant competent authority of its presence.

In addition, a person in control of a category 1a species must immediately take steps to combat or eradicate the species in order to comply with certain provisions of the NEM:BA. Similarly, a person in control of a category 1b listed species must control that species. Category 2 listed species may only be present on a site if a permit is obtained and the landowner ensures that the species does not spread beyond his or her property. The presence of category 3 species is subject to various exemptions and prohibitions.

It is important to note that, if category 1a or b species are present on land, an authorised official from the Department of Environmental Affairs must be allowed entrance to land to monitor, assist with or implement the combating or eradication of the listed invasive species.

What is even more important is that, if you sell your immovable property, you must, prior to the conclusion of the relevant sale agreement, notify the purchaser of the property in writing of the presence of a listed invasive species on that property. Furthermore, if you, as the owner of your property on which alien or listed invasive species are present, are a permit holder in terms of the Regulations, the new owner of the property must apply for a permit in terms the NEM:BA and the Regulations.

The new owner of the property will then be subject to the same conditions as the original permit holder, unless specific circumstances require all such permit conditions to be revised.

Restricted activities requiring permits

In addition to the regulatory measures provided for in the Regulations relating to listed invasive species, the NEM:BA further requires that any person carrying out a ‘restricted activity’ involving an alien or listed invasive species, must first obtain a permit prior to the commencement of that activity.

The NEM:BA and the Regulations provide for a broad range of activities to be considered as ‘restricted’, including:

  • Importing into the Republic, including introducing from the sea.
  • Possessing or exercising physical control over.
  • Growing, breeding or in any other way propagating.
  • Conveying, moving or otherwise translocating.
  • Selling or otherwise trading in, buying, receiving, giving, donating or accepting as a gift.
  • Releasing, spreading or allowing the spread of.
  • Transferring or releasing a specimen of a listed invasive fresh-water species from one discrete catchment system in which it occurs, to another discrete catchment system in which it does not occur.
  • Discharging of or disposing into any waterway or the ocean, water from an aquarium, tank or other receptacle that has been used to keep a specimen of an alien species or a listed invasive freshwater species.
  • Catching and releasing of a specimen of a listed invasive fresh-water fish or listed invasive fresh-water invertebrate species.
  • Introducing a specimen of an alien or listed invasive species to off-shore islands.
  • Releasing a specimen of a listed invasive fresh-water fish species, or of a listed invasive fresh water invertebrate species, into a discrete catchment system in which it already occurs.

It is critical that landowners are aware of both the list of restricted activities as well as the alien and listed invasive species that fall within the scope of the Regulations. The commencement of these activities without the necessary permit is considered to be a criminal offence in terms of NEM:BA.

Duties of care

A person who possesses a permit for a restricted activity involving an alien or listed invasive species must, in addition to complying with the conditions of the permit, take all required steps to prevent or minimise harm to biodiversity. In the event that the person fails to take these steps, a competent authority may issue a directive to that person instructing them to take the necessary remedial measures.

Failure to comply with this directive is not only a criminal offence, but also empowers the competent authority to implement the directive and recover the costs from persons that either caused the harm, or that benefitted from the implementation of the directive.

The AIS Regulations in action

The regulatory measures mentioned above found application in the first successful criminal conviction relating to the Regulations in the Pinetown Magistrate’s Court in 2017. In this matter, the Department of Environmental Affairs received a complaint about a property infested with listed invasive species. An inspection was subsequently conducted by the environmental management inspectors, during which they observed a number of listed invasive plant species such as seringa, bugweed and castor oil plants, which pose a serious fire hazard to the neighbouring properties.

The property was not fenced off and was adjacent to residential complexes and accessible to the public, serving as a potential hiding zone for criminals after having committed crimes in the neighbouring properties. The infestation of the listed invasive plant species had the potential to negatively affect the value and productivity of the land.

A notice of the intention to issue a directive and final directive, were issued in terms of section 73(3) of NEM:BA to Granada Home Builders for failing to submit a detailed work programme to the department for approval. The department then instituted a criminal investigation, due to the fact that the landowner failed to comply with the instructions of the final directive.

On 1 September 2017, the criminal case against the accused, the sole member of Granada Home Builders, was finalised in the Pinetown Magistrate’s Court. The accused appeared on charges relating to non-compliance with NEM:BA and the Regulations. He pleaded guilty and was sentenced to R50 000 or two years imprisonment, which was suspended for five years. The accused further spent approximately R350 000 in rates, environmental reports and the removal of invasive species from the property.

For more information, send an email to the authors at lredelinghuis@environment.gov.za or mjardine@environmemt.gov.za. – Lize Redelinghuis and Mark Jardine, Department of Environmental Affairs